Skip to content

Protecting the environment by providing legal services for forest cases of statewide significance

Protecting the environment by providing legal services for forest cases of statewide significance.

Navigation
...
You are here: Home » News » Northern Spotted Owl » Crosscut: "Back to the drawing board on spotted owls"

Crosscut: "Back to the drawing board on spotted owls"

Document Actions
April 17, 2009 -- A new administration signals yet another deep examination about how to save forest habitats for endangered spotted owls. After decades of studies and litigation and administrative maneuvers, are we any closer to a solution?

By Daniel Jack Chasan for Crosscut

The future of the Northern Spotted Owl, which seemed assured early in Bill Clinton's first term, remains firmly up in the air at the start of Barack Obama's. Another administration, another spotted owl plan. Will it never end?

Apparently not. Now, Obama's administration has backed away from the owl recovery plan and critical habitat designation pushed through at the end of George W. Bush's presidency. Facing suits by both environmental and forest products industry groups, the administration has told a federal judge it wants to remand both documents to the Fish and Wildlife Service and has asked the judge to grant 30 days to work out the details of a remand with the various litigants.

No one knows exactly what the administration has in mind. “All we know at this point,” says Doug Heiken of Oregon Wild, “is that they want to pull the plug.” Clearly, the administration doesn't want to be stuck defending the indefensible. Its notice to the court observed that an "Investigative Report issued by the Inspector General of the Department of the Interior on December 15, 2008 concluded that former Deputy Assistant Secretary of the Interior Julie MacDonald, acting alone or in concert with other Department of the Interior officials, took actions that potentially jeopardized the decisional process in the U.S. Fish and Wildlife Service’s recovery plan for the northern spotted owl."

Indeed, the Inspector General had ripped McDonald and her colleagues in no uncertain terms: “MacDonald's zeal to advance her agenda has caused considerable harm to the integrity of the [Endangered Species Act] program and to the morale and reputation of the [Fish and Wildlife Service], as well as potential harm to individual species. Her heavy-handedness has cast doubt on nearly every ESA decision issued during her tenure.”

There was plenty of blame to go around. “MacDonald's conduct was backed by the seemingly blind support of former Assistant Secretary for Fish and Wildlife and Parks, Judge Craig Manson. ...MacDonald was also ably abetted in her attempts to interfere with the science by Special Assistant Randal Bowman, Office of the Assistant Secretary for Fish and Wildlife and Parks, who held the position and authority to advance the unwritten policy to exclude as many areas as practicable from Critical Habitat Determinations. ...

“In the end, the cloud of MacDonald's overreaching, and the actions of those who enabled and assisted her, have caused the unnecessary expenditure of hundreds of thousands of dollars to re-issue decisions and litigation costs to defend decisions that, in at least two instances, the courts found to be arbitrary and capricious.”

The recovery plan and critical habitat designation created under this regime was “so scientifically flawed,” says Earthjustice attorney Kristen Boyles, that defending it “was going to be a monumental waste of time.”

But the consequences of not defending it aren't clear. Environmentalists had challenged the recovery plan, objecting primarily to the flawed science on which it was based. Both they and the forest products industry had challenged the critical habitat designation — one side, predictably, calling for more protected habitat, the other, predictably, calling for less — and it's hard to imagine them agreeing on the terms of a remand.

Boyles points out that if the administration scraps its new critical habitat designation, it can fall back on an earlier one. If it scraps the recovery plan, though, there is no earlier recovery plan on which it can rely. Boyles would like to see it revert, temporarily, to the Northwest Forest Plan and the individual forest management plans that have been in place for years, and to halt all destruction of owl habitat until a new plan is worked out.

The Northwest Forest Plan had served in lieu of a spotted owl recovery plan for 14 years. In the 1980s, the Reagan and George H.W. Bush administrations wanted to avoid listing the owl, but they got hammered in court. The listing came in 1990. The Bush administration started working on a recovery plan, and in 1992 it designated critical habitat. By that time, U.S. District Judge William Dwyer had enjoined new timber sales in the federal forests of western Washington, Oregon, and northern California, citing the administration's failure to protect the owl. Logging communities saw threats to their survival, and a lot of people predicted economic disaster. In 1994, the Clinton administration came out with the Forest Plan. People on both sides sued, but Dwyer lifted the injunction, the Fish and Wildlife Service didn't bother finishing its recovery plan, and the owl subsided as a national issue.

As a report by several Northwest economists put it five years later, “the sky didn't fall.” The kind of economic carnage that was widely anticipated simply didn't occur. On the other hand, Northwestern mills never cut anything close to the billion board feet a year that Clinton had suggested they would. Forest products companies gave generously to George W. Bush's campaign in 2000; after he was elected, Bush officials started referring to Clinton's “promise,” and tried in a number of ways — including settling, rather than defending against, industry lawsuits — to undercut the Forest Plan.

To settle one suit, the administration commissioned a "status review" of the owl. Many environmentalists expected a whitewash that would justify wholesale destruction of owl habitat. They were wrong. The status review concluded that owl populations were declining much more rapidly than anticipated, and that the decline was especially rapid at the northern end of their range — that is, in Washington. The reviewers pointed out that habitat loss still affected the owl, that the invasive, non-native barred owl posed a major immediate threat, that climate change posed a longer-term threat, and that disease posed a threat that was speculative but potentially grave.

The Bush administration subsequently assembled a team to create a recovery plan. The team was short on owl biologists and on time, but it did its best. A high-level oversight committee in Washington D.C. told the team that wasn't good enough. They oversight committee demanded an unprecedented second option, and ordered the team to play down the significance of habitat loss while playing up the significance of the barred owl.

Groups of scientific reviewers hammered the resulting plan so mercilessly that it obviously stood no chance of surviving a court test, and the adminstration went back to the drawing board. (Bush was actually the first president to opt out of defending a flawed owl recovery plan.) A revised plan, rushed out in the administration's final year, was widely considered an improvement on its predecessor, although it didn't seem to make anyone especially happy. Based on it, the administration came out with a new critical habitat designation, reducing the acreage protected for spotted owls by 23 percent.

Then, on the very last day of 2008, the administration issued the Western Oregon Plan Revision (WOPR), which permits significantly increased logging on 2.6 million acres of BLM land in western Oregon. Dominick dellaSalla, of the Ashland-based National Center for Conservation Science & Policy, who sat on the original recovery team, has said all along that the recovery planning process had been manipulated to lay the groundwork for WOPR Now, he thinks WOPR's days may be numbered.

Even if the new administration doesn't withdraw WOPR, the courts may scuttle it. The old regulations left fairly wide buffers along rivers and streams that protected salmon and provided corridors along which owls could move from one habitat area to another. WOPR has drastically reduced those buffers. This not only endangers owls; it arguably endangers listed coho populations, too. In fact, Boyles says, even without considering the spotted owl, “WOPR should be dead just on fish and clean water issues.”

DellaSalla agrees. He also says it seemed ironic to him when Tom Partin, president of the American Forest Resources Council, said science didn't change when a new administration moved into the White House. "It was the best scientific information available at the time," Partin told The Associated Press. "I don't see the science changing that much in the few months from one administration to a new administration." Of course, it doesn't. But dellaSalla and others argue that the science behind the current recovery plan and critical habitat designation is fatally flawed. Boyles suggests that a good starting point for a new plan would be all the scathing scientific critiques of the the draft and final plans. They contain much of what we know about the spotted owl's needs.

We know a good deal, but realistically, there's also still a lot of uncertainty. No one really knows what to do about those invading barred owls. The first recovery plan called for experimentally shotgunning hundreds of them. The second recovery plan leaves a barred owl strategy to be determined later. That seems reasonable enough. A final solution might involve whacking the invaders. Or it might not. Environmental groups are divided on the subject of killing barred owls, and even those who think it makes sense as an experiment tend to doubt that killing them, by itself, will suffice. As dellaSalla says, “you're going to have to kill an awful lot of barred owls.”

The threat from climate change looms larger and larger, as scientists refine their predictions, but its exact nature remains unclear. The University of Washington's Climate Impacts Group has reported that: “The combined climate change impacts on tree growth, regeneration, fire, and insects will fundamentally change the nature of forests, particularly in ecosystems where water deficits are greatest. Many impacts will likely occur first in forests east of the Cascade crest, but forests west of the Cascades will likely experience significant changes in disturbance regime and species distribution before the end of the 21st century.”

In those east side forests the buildup of dead and dying timber already strikes many people as a series of major forest fires waiting to happen. The status review identified fire as a major threat to owl habitat. Climate change research suggests that bug damage and fire risk will only get worse. The now-repudiated recovery plan called for no fixed forest reserves on the east side; just protect some habitat, and if it burns, protect someplace else.

Some experts say that it makes sense to cut dead and dying timber, to reduce the fire risk. Some conservationists concede that it may make sense, but say that one must weigh the fire risk against the habitat value of the down and standing pine. They tend to be a bit suspicious, because under both Democrats and Republicans, reducing the fuel buildup has been a pretext for giving loggers access to healthy trees. Of course, in the good old days, vast tracts of east side pine went up in smoke, but owls and other critters had plenty of other places to go. Now, their options are limited.

Contemplating the future risk from forest fires, climate change, and barred owls, environmental groups tend to argue that since so much remains unknown, it makes sense to build in a wide margin for error. If habitat is likely to burn up in a forest fire, get taken over by barred owls, or change because of an altered climate, owls should have someplace else to go.

But not everyone agrees. Somewhat incredibly, says Paul Kampmeier, an attorney with the Washington Forest Law Center, both “barred owls and fire have been used as a pretext . . . to justify more logging.” In fact, both sides see new threats as further reason to do what they've wanted to do all along: The environmentalists want to protect habitat; the industry wants to cut standing timber.

Historically, both scientists and courts have tended to back the habitat side. And why not? If you know a species is threatened, and you're not sure how some major threats will play out, it makes common sense to protect more habitat.

But how much is enough? In the early 20th century, when Samuel Gompers, first president of the American Federation of Labor, was asked what American workers wanted. Gompers answered, “more.” That seems to be the answer for owl habitat, to

Daniel Jack Chasan is an author, attorney, and writer of many articles about Northwest environmental issues.